In my previous post, I discussed the Virginia case (Lester v. Allied Concrete) where an attorney and client were sanctioned for deleting a Facebook account and providing misleading answers regarding the existence of a Facebook account among other questionable behavior in the case. The next logical question is “what should I tell my client?”
Be warned that my opinion is NOT the opinion of the North Carolina State Bar. I can have an opinion, but let’s face it, my opinion carries little weight. At the end of the day, only the State Bar or a Judge can levy sanctions or decide your fate. Before you answer any question of this nature, you should review the ethical rules and call the State Bar to obtain guidance.
Now, back to my opinion . . . if a client asks you if he should edit his past social media, I would suggest that you talk to him about the Virginia case and any other cases you can locate on the issue. I would not tell the client to destroy anything. I would also advise him about the doctrine of spoliation of evidence and discuss steps he should take to preserve evidence. A client may be frustrated that you are not “helping” him out, and the client may even fire you as an attorney. Consider that firing a blessing as you do not want to choose your client’s goals over your ethical obligations.
When I talk to my clients about social media, I address future behaviors. I believe that unless there is some type of smoking gun on these types of forums, a client can explain any previous questionable behaviors. For example, if a client tweeted that her husband is “a tool of a parent” because he “puts his Wh*re first over their son,” I would have the client testify that she was mad and spouted off thoughts without thinking. I would also have her testify about how she has learned that is not appropriate behavior, etc. Asking for forgiveness can go a long way especially if there is not a lengthy history of these actions.
For most lawyers, social media is the next frontier. When we start in a new frontier, some lawyers can be flippant about the significance of the area. Being flippant in this area could cost you as it did in the attorney in the Lester case.